Exhibit 10.24
NON-STATUTORY STOCK OPTION
Non-transferable
GRANT TO
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(the "Optionee")
the right to purchase from Xxxxx Respiratory Therapeutics, Inc. (the "Company")
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shares of its common stock, $0.01 par value, at the price of $_____ per share
pursuant to and subject to the provisions of the Xxxxx Respiratory Therapeutics,
Inc. 2005 Incentive Plan (the "Plan") and to the terms and conditions set forth
on the following page.
Unless vesting is accelerated in accordance with the Plan or in the discretion
of the Committee, the Options shall vest (become exercisable) in accordance with
the following schedule:
Continuous Status as a Participant
after Grant Date Percent of Option Shares Vested
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IN WITNESS WHEREOF, Xxxxx Respiratory Therapeutics, Inc., acting by and
through its duly authorized officers, has caused this Agreement to be executed
as of the Grant Date.
XXXXX RESPIRATORY THERAPEUTICS, INC.
By:
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Its: Authorized Officer
Grant Date:
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Accepted by Optionee:
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TERMS AND CONDITIONS
1. Grant of Option. Xxxxx Respiratory Therapeutics, Inc. (the "Company")
hereby grants to the Optionee named on Page 1 hereof ("Optionee"), under the
Xxxxx Respiratory Therapeutics, Inc. 2005 Incentive Plan (the "Plan"), stock
options to purchase from the Company (the "Options"), on the terms and on
conditions set forth in this agreement (this "Agreement"), the number of shares
indicated on Page 1 of the Company's $0.01 par value common stock, at the
exercise price per share set forth on Page 1. Capitalized terms used herein and
not otherwise defined shall have the meanings assigned to such terms in the
Plan.
2. Vesting of Options. The Option shall vest (become exercisable) in
accordance with the schedule shown on Page 1 of this Agreement. Notwithstanding
the foregoing vesting schedule, upon a Change in Control, all Options shall
become fully vested and exercisable if (i) the Options are not assumed by the
surviving company or equitably converted or substituted, or (ii) the Options are
assumed by the surviving company or otherwise equitably converted or substituted
in connection with a change in control, and the Optionee's employment is
terminated without Cause or, in some cases, if the Optionee resigns for Good
Reason, within two years after the Change in Control.
3. Term of Options and Limitations on Right to Exercise. The term of the
Options will be for a period of ten years, expiring at 5:00 p.m., Eastern Time,
on the tenth anniversary of the Grant Date (the "Expiration Date"). To the
extent not previously exercised, the Options will lapse prior to the Expiration
Date upon the earliest to occur of the following circumstances:
(a)Three months after the termination of Optionee's Continuous
Status as a Participant for any reason other than by reason of Optionee's death
or Disability.
(b)Twelve months after the date of the termination of Optionee's
Continuous Status as a Participant by reason of Disability.
(c)Twelve months after the date of Optionee's death, if Optionee
dies while employed, or during the three-month period described in subsection
(a) above or during the twelve-month period described in subsection (b) above
and before the Options otherwise lapse. Upon Optionee's death, the Options may
be exercised by Optionee's beneficiary designated pursuant to the Plan.
The Committee may, prior to the lapse of the Options under the
circumstances described in paragraphs (a), (b) or (c) above, extend the time to
exercise the Options as determined by the Committee in writing. If Optionee
returns to employment with the Company during the designated post-termination
exercise period, then Optionee shall be restored to the status Optionee held
prior to such termination but no vesting credit will be earned for any period
Optionee was not in Continuous Status as a Participant. If Optionee or his or
her beneficiary exercises an Option after termination of service, the Options
may be exercised only with respect to the Shares that were otherwise vested on
Optionee's termination of service.
4. Exercise of Option. The Options shall be exercised by (a) written
notice directed to the Secretary of the Company or his or her designee at the
address and in the form specified by the Secretary from time to time and (b)
payment to the Company in full for the Shares subject to such exercise (unless
the exercise is a broker-assisted cashless exercise, as described below). If the
person exercising an Option is not Optionee, such person shall also deliver with
the notice of exercise appropriate proof of his or her right to exercise the
Option. Payment for such Shares shall be in (a) cash, (b) Shares previously
acquired by the purchaser, which have been held by the purchaser for such period
of time, if any, as necessary to avoid the recognition of an expense under
generally accepted accounting principles as a result of the exercise of the
Options, or (c) any combination thereof, for the number of Shares specified in
such written notice. The value of surrendered Shares for this purpose shall be
the Fair Market Value on the exercise date. To the extent permitted under
Regulation T of the Federal Reserve Board, and subject to applicable securities
laws and any limitations as may be applied from time to time by the Committee
(which need not be uniform), the Options may be exercised through a broker in a
so-called "cashless exercise" whereby the broker sells the Option Shares on
behalf of Optionee and delivers cash sales proceeds to the Company in payment of
the exercise price. In such case, the date of exercise shall be deemed to be the
date on which notice of exercise is received by the Company and the exercise
price shall be delivered to the Company by the settlement date.
5. Beneficiary Designation. Optionee may, in the manner determined by the
Committee, designate a beneficiary to exercise the rights of Optionee hereunder
and to receive any distribution with respect to the Options upon Optionee's
death. A beneficiary, legal guardian, legal representative, or other person
claiming any rights hereunder is subject to all terms and conditions of this
Agreement and the Plan, and to any additional restrictions deemed necessary or
appropriate by the Committee. If no beneficiary has been designated or survives
Optionee, the Options may be exercised by the legal representative of Optionee's
estate, and payment shall be made to Optionee's estate. Subject to the
foregoing, a beneficiary designation may be changed or revoked by Optionee at
any time provided the change or revocation is filed with the Company.
6. Withholding. The Company or any employer Affiliate has the authority
and the right to deduct or withhold, or require Optionee to remit to the
employer, an amount sufficient to satisfy federal, state, and local taxes
(including Optionee's FICA obligation) required by law to be withheld with
respect to any taxable event arising as a result of the exercise of the Options.
The withholding requirement may be satisfied, in whole or in part, at the
election of the Secretary, by withholding from the Options Shares having a Fair
Market Value on the date of withholding equal to the minimum amount (and not any
greater amount) required to be withheld for tax purposes, all in accordance with
such procedures as the Secretary establishes. If Shares are surrendered to
satisfy withholding obligations in excess of the minimum withholding obligation,
such Shares must have been held by the purchaser as fully vested shares for such
period of time, if any, as necessary to avoid the recognition of an expense
under generally accepted accounting principles as a result of the exercise of
the Options.
7. Limitation of Rights. The Options do not confer to Optionee or
Optionee's beneficiary designated pursuant to Paragraph 5 any rights of a
shareholder of the Company unless and until Shares are in fact issued to such
person in connection with the exercise of the Options. Nothing in this Agreement
shall interfere with or limit in any way the right of the Company or any
Affiliate to terminate Optionee's service at any time, nor confer upon Optionee
any right to continue in the service of the Company or any Affiliate.
8. Stock Reserve. The Company shall at all times during the term of this
Agreement reserve and keep available such number of Shares as will be sufficient
to satisfy the requirements of this Agreement.
9. Restrictions on Transfer and Pledge. No right or interest of Optionee
in the Options may be pledged, encumbered, or hypothecated to or in favor of any
party other than the Company or an Affiliate, or shall be subject to any lien,
obligation, or liability of Optionee to any other party other than the Company
or an Affiliate. The Options are not assignable or transferable by Optionee
other than by will or the laws of descent and distribution or pursuant to a
domestic relations order that would satisfy Section 414(p)(1)(A) of the Code if
such Section applied to an Option under the Plan; provided, however, that the
Committee may (but need not) permit other transfers. The Options may be
exercised during the lifetime of Optionee only by Optionee or any permitted
transferee.
10. Restrictions on Issuance of Shares. If at any time the Committee shall
determine in its discretion, that registration, listing or qualification of the
Shares covered by the Options upon any Exchange or under any foreign, federal,
or local law or practice, or the consent or approval of any governmental
regulatory body, is necessary or desirable as a condition to the exercise of the
Options, the Options may not be exercised in whole or in part unless and until
such registration, listing, qualification, consent or approval shall have been
effected or obtained free of any conditions not acceptable to the Committee.
11. Plan Controls. The terms contained in the Plan are incorporated into
and made a part of this Agreement and this Agreement shall be governed by and
construed in accordance with the Plan. In the event of any actual or alleged
conflict between the provisions of the Plan and the provisions of this
Agreement, the provisions of the Plan shall be controlling and determinative.
12. Successors. This Agreement shall be binding upon any successor of the
Company, in accordance with the terms of this Agreement and the Plan.
13. Severability. If any one or more of the provisions contained in this
Agreement is invalid, illegal or unenforceable, the other provisions of this
Agreement will be construed and enforced as if the invalid, illegal or
unenforceable provision had never been included.
14. Notice. Notices and communications under this Agreement must be in
writing and either personally delivered or sent by registered or certified
United States mail, return receipt requested, postage prepaid. Notices to the
Company must be addressed to:
Xxxxx Respiratory Therapeutics, Inc.
000 Xxxx Xxxxxx
Xxxxxxx, Xxx Xxxxxx 00000
Attn: Secretary
or any other address designated by the Company in a written notice to Optionee.
Notices to Optionee will be directed to the address of Optionee then currently
on file with the Company, or at any other address given by Optionee in a written
notice to the Company.
